to the attention of the Commission. For that reason the Freedom of Information Act has not yet been cited in any Commission opinion. The Commission continues to publish, as it always has, its final opinions and orders made in the adjudication of cases in a manner which sets forth the final votes of each member. Similarly, statements of policy and interpretations adopted by the Commission having broad applicability continue to be published in the Federal Register and statements and interpretations more narrow in scope, as in the past, are widely distributed in the form of Commission releases and made available for inspection and copying in the public reference rooms maintained by the Commission. Because the Freedom of Information Act requires that administrative staff manuals and instructions to staff be made available, a review of all materials which might be considered within that requirement was made prior to the effective date of the Act. It was discovered that many were obsolete and, for that reason, they were withdrawn from use with the expectation that their subject matter would be made available in an up-to-date form as promptly as possible. Since the effective date of the Freedom of Information Act a manual with respect to the Trust Indenture Act of 1939 has been made available for inspection and copying in our public reference facilities. About three-fourths of the material which had been contained in the obsolete "Manual of Administrative Practice" with respect to the Securities Act of 1933 has by now been made public. Some of this had been done prior to the enactment of the Freedom of Information Act (Securities Act release No. 4666, Feb. 7, 1964) and substantial additional portions were published for public comment by the Director of the Division of Corporation Finance on December 20, 1967 (Securities Act release No. 4890), and should soon be promulgated by him in final form. I am advised that the balance of the material which had been contained in that manual appears to be related primarily to internal personnel rules and prac tices exempt from public disclosure by the provisions of 5 U.S.C. 552(b) (3). While that remaining material is presently under review to determine what, if any, of it may be made public, I am further advised that very little would in any event be of use to the public. An obsolete "Manual of Administrative Practice" with respect to the Securities Exchange Act of 1934 was also withdrawn prior to the effective date of the Freedom of Information Act. Most of the material which that manual contained pertained to the Commission's rules with respect to proxy solicitations. The substantive content of that manual has recently been incorporated directly into those rules (Securities Exchange Act release No. 8206, Dec. 19, 1967). A manual dealing with regulation A under the Securities Act is currently being revised. Staff manuals also exist pertaining to enforcement matters which instruct members of the staff with respect to investigatory procedures. These manuals have not been made available and we do not anticipate that they will be, since they relate solely to the internal personnel rules and practices which are exempt from the disclosure requirements of the Freedom of Information Act pursuant to the provisions of 5 U.S.C. 552 (b) (2), and we are advised by our staff that their disclosure may significantly impair the performance of the Commission's statutory enforcement responsibilities. In accordance with the Freedom of Information Act we are maintaining a current index of the material described in 5 U.S.C. 552 (a) (2) which has been promulgated since July 1, 1967. In addition, various indexes which prior to that time were available for staff use only have been placed in our public reference rooms for use by members of the public. I trust the foregoing will be helpful to you. HUGH F. OWENS, Commissioner. MEMORANDUM OF THE OFFICE OF THE GENERAL COUNSEL RE REQUEST BY SENATOR EDWARD V. LONG TO BE ADVISED WITH RESPECT TO THE COMMISSION'S IMPLEMENTATION OF THE FREEDOM OF INFORMATION ACT (HIS LETTER DATED JAN. 30, 1968) In the following circumstances formal requests for access to Commission records required staff interpretation of that subdivision of the Commission's Rule 17 CFR 200.80, which permits or requires certain records to be withheld to the extent authorized by the Freedom of Information Act.1 1. On July 7, 1967, a Washington, D.C., attorney requested access to a letter written to the Commission's staff by a corporation. The Public Reference Section, after the letter had been examined by a staff attorney, denied the request in accordance with the requirements of the Commission's Rule 17 CFR 200.80 (c) (4) (i) (implementing the confidential information exemption contained in 5 U.S.C. 552 (b) (4)) which provides that "information obtained in connection with *** no-action letters which is deemed to have been submitted in confidence unless the contrary clearly appears,' will not generally be disclosed. No request for a ruling was made to the public information officer. 2. On July 11, 1967, a resident of Arlington, Va., asked to examine the forms which had been executed by members of the public when requesting access to Commission records. The staff consulted the public information officer who ruled that a member of the public is entitled to inspect those records; access to those records was immediately granted. 3. On July 17, 1967, a New York City attorney requested access to various records, including letters written by members of the staff to private attorneys commenting upon the contents of registration statements before they had become effective. While the other records requested were immediately made available, the Public Reference Section, after consideration by a staff attorney, denied the request for those letters in accordance with the requirements of the Commission's Rule 17 CFR 200.80 (c) (4) (iii) (implementing the confidential-information exemption contained in 5 U.S.C. 552 (b) (4)), which provides that "information contained in letters of comment in connection with registration statements * * * which is deemed to have been submitted to the Commission in confidence or to be confidential at the instance of the registrant *** unless the contrary clearly appears***" will not generally be disclosed. No request for a ruling was made to the public information officer. 4. On July 18, 1967, a Washington, D.C., resident, requested a specific letter written to the Commission by a corporation. The Public Reference Section, after consideration by a staff attorney, denied the request in accordance with the requirements of the Commission's Rule 17 CFR 200.80 (c) (4) (implementing the confidential-information exemption contained in 5 U.S.C. 552 (b) (4)). No request for a ruling was made to the public information officer. 5. On August 7, 1967, a resident of Rochester, N.Y., requested, in addition to another record which was immediately made available, that he be given access to certain correspondence between the issuer of certain securities and the Commission. The Public Reference Section denied the request for that correspondence, after review by a staff attorney, in accordance with the requirements of the Commission's Rule 17 CFR 200.80 (c) (4) (implementing the confidential-information exemption contained in 5 U.S.C. 552 (b) (4)). No ruling was requested from the public information officer. 6. On September 1, 1967, a Washington, D.C., attorney requested, in addition to other records which were immediately made available, that he be provided with copies of "correspondence requesting or furnishing administrative interpretation of Rule 25(b) (6) of Public Utility Holding Company Act." Upon review by a staff attorney, it was determined that the correspondence requested did not contain any information required to be withheld under the Commission's Rule 17 CFR 200.80, as authorized by the Freedom of Information Act, and the requested correspondence was therefore made available. 7. On September 27, 1967, a resident of Washington, D.C., requested, in addition to other records which were immediately made available, that he be given access to a corporation index maintained by the Commission for the use of its staff. Upon review by staff attorneys, it was determined that certain information contained in the index was "related solely to the internal personnel rules and practices of the Commission," and could not be made available consistent with the Commission's Rule 17 CFR 200.80 (c) (2) (implementing the internal-rules-andpractices exemption contained in 5 U.S.C. 552 (b) (2)), but that the index, with that information deleted, could be made available. The person who had made the request was so advised, but he withdrew his request before the deletions were made and the index made available. The public information officer was not asked to make any ruling with respect to this request. 1 No reference is made herein to any of the several thousand requests for those of the Commission's records which have always been and continue to be made available by the Commission independent of the Freedom of Information Act's requirements; all other cases, however, are included. 8. On November 29, 1967, a New York City attorney requested access to certain exhibits introduced in an administrative proceeding before the Commission which had been conducted in private as authorized by section 22 of the Securities Exchange Act of 1934, 15 U.S.C. 78v. The Public Reference Section refused to make the records available as material exempted from disclosure by statute in accordance with the Commission's Rule 17 CFR 200.80 (c) (3) (ii) (implementing the statutorily exempt exemption contained in 5 U.S.C. 552 (b) (3)). Upon request for a ruling, however, the public information officer determined that the request having been made by counsel of record in that proceeding, he was entitled to examine the record and exhibits therein. The records were made available to him on the same day the request was made. 9. On December 15, 1967, a New York City resident requested, in addition to other records which were immediately made available, that he be given access to correspondence between an issuer and the Commission concerning a registration statement before it had become effective. The Public Reference Section denied the request, after review by a staff attorney, in accordance with the requirements of the Commission's Rule 17 CFR 200.80 (c) (4) (ii) (implementing the confidential-information exemption contained in 5 U.S.C. 552(b) (4)). No request for a ruling was made to the public information officer, 10. On January 19, 1968, a Washington, D.C., attorney requested copies of letters which the Commission had received commenting upon the Commission's proposal to adopt a Rule 6c-1 under the Investment Company Act. After consideration by a staff attorney, the requested letters and copies thereof were made available to him on the same day the request was made. 11. On February 6, 1968, a Washington, D.C., attorney requested, in addition to other records which were immediately made available, that he be given access to all correspondence of an issuer of securities, particularly as related to registration statements. The Public Reference Section declined to make the correspondence available, after consideration by a staff attorney. A request for a ruling was made to the public information officer who asked the Office of the General Counsel to explain the Commission's rule to the person who had made the request. He was advised that correspondence pertaining to registration statements before they become effective, in accordance with the Commission's Rule 17 CFR 200.80 (c) (4) (ii) (implementing the confidential-information exemption contained in 5 U.S.C. 552(b) (4)), was not generally made available because of the confidential information it contains. He was told that other correspondence, which did not contain confidential information, might be made available and that the registrant would be asked, if he wished, whether it was willing to have the requested confidential information disclosed. This offer was declined and the request was withdrawn, thereby making a ruling by the public information officer unnecessary. In addition to the formal requests referred to above, with respect to which our records are complete, a number of informal requests have been received by various members of the staff. Since these requests were not directly handled by the Public Reference Section, our knowledge thereof may be incomplete. although every attempt has been made fully to ascertain the facts concerning the disposition of all such requests. Matters of this type known to us are as follows: 1. From a time prior to the effective date of the Freedom of Information Act. opposing attorneys in a lawsuit in Indiana have on several occasions requested access to information obtained by the Commission in the course of an investigation for use in connection with the lawsuit. Those requests have been repeated since that act became effective. Because the material sought was contained in investigatory files and is directly connected with possible statutory violations currently under investigation, those requests have continued to be refused in accordance with the Commission's rule 17 CFR 200.80 (c) (7) (implementing the investigatory-files exemption contained in 5 U.S.C. 552 (b) (7). Those attorneys have not purported to make their requests pursuant to the Freedom of Information Act, and have not sought any ruling from the public information officer in connection therewith. The staff, however, has received the guidance of the Commission in responding to their requests. 2. In a letter dated July 13, 1967, a Chicago attorney requested that he be permitted to examine an investigatory file for use in the defense of a private action in which he represented a registered broker-dealer. Although the Com mission's rule 17 CFR 200.80 (e) (7) (implementing the investigatory-files exemption contained in 5 U.S.C. 552(b) (7)) authorized a denial of the request. the merits of the particular request were considered by the Office of the General Counsel. It was determined that some of the contents of the file were of a particularly sensitive confidential nature and the attorney was therefore advised that the file would not be made available. He did not seek a ruling from the public information officer. 3. By letter dated July 26, 1967, a resident of Erie, Pa., requested a copy of a letter which was said to have been written by a staff member. The request was based upon a report of the existence of the letter contained in a footnote in a treatise on the Federal Securities Act which in turn cited the CCH Federal securities law reporter as authority for the existence of the letter. As soon as the letter was located a copy was provided as requested. 4. In a letter dated July 28, 1967, a resident of Palo Alto, Calif., requested access to Commission files relating to himself or to a company of which he was an officer. He was advised that since the requested files contained only public filings and correspondence to which he or the company or its attorneys had been a party, there would be no objection to making all the contents available to him although some of the correspondence might be required to be withheld from other persons under the Commission's rule implementing the Freedom of Information Act. In view of this he was asked to clarify whether he wished to go to the expense of having copies made. In answer to a subsequent letter, the Records and Service Office of the Commission, on August 19, 1967, assured him that the files referred to were complete and up-to-date and contained only the material previously described. No further request was received. 5. In a letter dated August 6, 1967, a graduate student at Yale University requested access to the minutes of the Commission from 1933 through 1940 for research purposes. By letter dated September 14, 1967, the Office of the General Counsel invited him to discuss his request in greater detail either by telephone or in person. It was pointed out that his request involved a very substantial volume of material some of which contains information received in confidence and others of which might invade the personal privacy of persons still living if disclosed. Such information is not generally made available in accordance with the Commission's rule 17 CFR 200.80 (c) (4) and 200.80 (c) (6) (implementing the confidential-information and personal-privacy exemptions contained in 5 U.S.C. 552(b) (4) and (b) (6)). The hope was expressed that a proper accommodation might be reached between the Commission's desire to further legitimate research and its duty to protect individual privacy and personal confidences. Although arrangements were made by telephone for a discussion of the matter when the student was in Washington, we have not heard from him since. 6. By letter dated August 31, 1967, a resident of Milton, Mass., asked whether he could review the documents upon which a portion of the Commission's "Special Study of the Securities Markets," (H. Doc. 95, 88th Cong., 1st sess., 196364). concerning a particular corporation had been based. He was advised by letter, dated October 6, 1967, that while the staff believed the material could be made available to him without breach of confidence, it was stored in one or more of 25 cartons of unsegregated material, and he would be required to bear the cost of locating the particular records which he requested. Although a copy of the appropriate form to facilitate his request for services was provided, we have not heard from him since. 7. In a letter dated September 2, 1967, a comprehensive request was received from a resident of New York City for access to virtually all of the many records concerning him and corporations with which he had been associated. His request was acknowledged by a letter dated September 13, 1967, in which he was advised that a number of the records apparently within the scope of his request were being obtained from the Federal records center where they were stored. In a letter dated October 16, 1967, he was given a list of records which would be made available. He was also advised that material contained in correspondence files would be made available only if he authorized a search, at his expense, to determine which of the contents of those files could be made available consistent with the Commission's rule 17 CFR 200.80, implementing the Freedom of Information Act, 5 U.S.C. 552, and that other matters requested were subject to one or more of five specifically identified exemptions contained in the Freedom of Information Act, 5 U.S.C. 552 (b), and could not be made available by the staff under the Commission's rule. Although he was told that he could examine the indicated records either in Washington or New York (if he were willing to pay the cost of transporting them) we have not heard further from him. The records requested were retained for about 3 months, but in view of his apparent lack of interest, those records have now been returned to the Federal records center. 8. By letter dated October 19, 1967, a member of the staff of the Wall Street Journal requested access to correspondence between the Commission and the New York Stock Exchange and between the Commission and the National Association of Securities Dealers pertaining to certain subject matters during certain periods. The Commission informally determined that while one or more of the exemptions from the disclosure requirements of the Freedom of Information Act might apply, no interest of the Commission or the other parties to the correspondence required invocation of their provisions with respect to the particular documents requested. The Wall Street Journal was so advised and the correspondence requested was made available to its representative on January 31, 1968. On February 1, 1968, another member of the Journal's staff requested by telephone that an additional document also be made available. Since no basis for withholding that document existed under the Commission's rule implementing the Freedom of Information Act, a copy thereof was mailed to him on the same day his request was made." 9. In a letter dated November 10, 1967, a graduate student at the University of Nebraska requested for research purposes copies of an accounting series release proposal which had been made in 1944 (but never adopted), and the comments which had been received by the Commission with respect thereto." After the requested material had been obtained from the Federal records center, he was advised by letter dated December 1, 1967, that the comments on the release proposal had been received on a confidential basis and for that reason the identity of those who had commented could not be disclosed. He was informed, however, that if he wished, the chief accountant would recommend to the Commission that the proposal and comments be made available to him with the names of the persons who commented deleted. In a letter dated December 15, 1967, the student asked that that be done. The recommendation was made on December 21, 1967, and was approved on December 28, 1967. Copies were thereafter made of the records requested and the copies were sent to him on January 10, 1968. He had asked that the nature of the person making comment, (i.e., accounting firm, regulatory agency, etc.) be disclosed, and that was done. In accordance with the Commission's rule, 17 CFR 200.80 (d)(2), (g) (1) and (g) (4), the student bore the expense of locating and copying the records. 10. In a letter dated January 16, 1968, a Tampa, Fla., attorney requested copies of all correspondence contained in a Commission file relating to a registration statement filed by a corporation. The public reference section denied the request, after consideration by staff attorneys, since each of the documents contained in that file had been found to contain information deemed to have been submitted to the Commission in confidence as set forth in the Commission's rule 17 CFR 200.80 (c) (4) (ii) (implementing the confidential-information exemption contained in 5 U.S.C. 552(b) (4)). In a letter dated February 15, 1968, by the acting chief of the public reference section, the attorney was so advised and was provided with a copy of the Commission's rule. He has not requested a ruling by the public information officer. 11. By letter dated January 22, 1968, a Los Angeles attorney made a request to the Los Angeles branch office of the Commission for permission to examine certain transcripts of testimony taken in the course of an investigation conducted by the Commission. The Records and Service Office of the Commission, after consultation with staff attorneys, advised him that transcripts such as were requested, as part of an investigatory file, are generally not made available to the public in accordance with the exemption from the disclosure requirements of the Freedom of Information Act contained in 5 U.S.C. 552(b) (7), as implemented by the Commission's rule. The attorney was provided with a copy of the rule and has not requested a ruling from the public information officer. 2 In an article published in the New York Times on Sunday, February 18, 1968, it was reported that the Commission had determined that correspondence between the Commission and the exchanges was entitled to be withheld from public disclosure under the Freedom of Information Act as internal documents, and that requests by the Times for copies of such correspondence had been refused. In a telephone conversation with the writer of that article on February 26, 1968, the Secretary to the Commission ascertained that the reporter did not claim to have personal knowledge eiher that the views of the Commission were as he had reported or of any specific requests made by the Times. We have no record of any request for Commission correspondence with the exchanges made by a representative of the Times since the effective date of the Freedom of Infor mation Act. 3 The dean of the Graduate School of the University of Nebraska requested the same material, Since the staff was advised that he and the student would use the information together, their respective requests were treated as a single request. |